United States District Court, D. Vermont
OPINION AND ORDER (Doc. 1)
Geoffrey W. Crawford, Judge
Plaintiff
Darren Couture, appearing pro se, brings this action
against Vermont Forensic Assessment, PLLC, John C. Holt, PhD,
Licensed Psychologist - Doctorate, Thomas A. Powell, PhD,
Licensed Psychologist - Doctorate, Matthew F. Valerio, Esq.,
Emily Tredeau, Attorney for Prisoner Rights, Kim Bushey,
Program Director for the Department of Corrections, and
Victoria Martini, PhD, Licensed Psychologist - Doctorate,
alleging: (1) violations of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12101,
etseq., (2) violations of the Heath Insurance
Portability and Accountability Act of 1996
("HIPAA"), 42 U.S.C. § 1320, et seq.,
(3) violations of the Fourth, Sixth, and Fourteenth
Amendments to the United States Constitution, (4) violations
of the analogous provisions of the Vermont Constitution, and
(5) legal malpractice based upon violations of the
confidential attorney-client relationship.[1] Couture has filed
a motion to proceed in forma pauperis under 28
U.S.C. § 1915 {see Doc. 1), and has submitted
an affidavit (Doc. 1-1) that makes the showing required under
§ 1915(a). Accordingly, the request to proceed in
forma pauperis (Doc. 1) is GRANTED. However, for the
reasons set forth below, the Complaint is DISMISSED with
leave to amend. Plaintiffs request for appointed counsel
(Doc. 1-2 at 6) is DENIED without prejudice.
Discussion
Pursuant
to the in forma pauperis statute, the court conducts
an initial screening of the Complaint. See 28 U.S.C.
§ 1915(e)(2). Filings by self-represented parties are
"to be liberally construed, and a. pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (internal quotation marks and citations omitted).
However, the court must dismiss the Complaint sua
sponte if it determines the action fails to state a
claim on which relief may be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii).
The
Complaint cannot proceed as drafted for two reasons. First,
though all alleged facts relate to a claimed HIP AA
violation, "there is no private cause of action under
HIPAA." Thurston v. Pallito, Civil Action No.
5:13-cv-316, 2015 WL 1097377, at *17 (D. Vt. Jan. 13, 2015)
(citation omitted) (Report and Recommendation), adopted in
relevant part by 2015 WL 1101157 (D. Vt. Mar. 11, 2015);
see also Bond v. Conn. Bd. of Nursing, 622 F.App'x
43, 44 (2d Cir. 2015) ("It is doubtful that HIPAA
provides a private cause of action at all." (collecting
cases)).
Second,
the non-HIPAA legal allegations are unclear. Pursuant to Rule
8 of the Federal Rules of Civil Procedure, a plaintiff must
provide a short and plain statement of his claims against
each defendant showing that he is entitled to relief.
See Fed. R. Civ. P. 8(a). A complaint that
"offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted). "Nor
does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement will not suffice."
Id. (internal quotation marks, citation, and
alteration omitted); see BellAtl Corp. v. Twombfy,
550 U.S. 544, 547 (2007) (Pleading must allege "enough
facts to state a claim to relief that is plausible on its
face"). Here, the Complaint as drafted does not allege
specific facts to support Plaintiffs allegations of ADA and
constitutional violations, or legal malpractice. Rather, it
sets forth only conclusory statements alleging that his
rights were violated.
Plaintiff
has also asked the court to appoint counsel. (Doc. 1-2 at 6.)
His request is based upon his assertion that his case
"involves mental health/medical privacy issues outside
the scope of Plaintiff s understanding abilities."
(Id.) The court notes that "pro se
parties do not have a constitutional right to the assistance
of counsel in civil cases. See Marshall v. Hanson,
No. 2:13-cv-224-wks, 2015 WL 1429797, at *3 (D. Vt. Mar. 27,
2015) (citing Leftridge v. Conn. State Trooper Officer
No. 1283, 640 F.3d 62, 68 (2d Cir. 2011)). While the
court considers several factors when evaluating whether to
appoint counsel for a party proceeding in forma
pauperis, the threshold consideration is "whether
the [party's] position seems likely to be of
substance." Hendricks v. Coughlin, 114 F.3d
390, 392 (2d Cir. 1997) (citation omitted). The Second
Circuit has instructed that "[c]ourts do not perform a
useful service if they appoint a volunteer lawyer to a case
which a private lawyer would not take if it were brought to
his or her attention." Cooper v. A. Sargenti
Co., 877 F.2d 170, 174 (2d Cir. 1989). As explained
above, Plaintiffs allegations currently lack legal merit, and
therefore the court is barred from appointing counsel at this
time.
Generally,
a pro se litigant is afforded an opportunity to
amend his pleading prior to dismissal "unless the court
can rule out any possibility, however unlikely it might be,
that an amended complaint would succeed in stating a
claim." Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007) (citation omitted). Plaintiff is hereby GRANTED
thirty days leave to file an Amended Complaint that complies
with Rule 8(a) of the Federal Rules of Civil Procedure, and
that sets forth claims that may be asserted in federal court.
See Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000). The
Amended Complaint must be captioned as an "Amended
Complaint, " and bear the same docket number as this
Order. It must allege all claims and name all defendants
Plaintiff intends to include, as the Amended Complaint will
supersede the original proposed Complaint in all respects. No
summonses shall issue at this time.
Conclusion
The
motion to proceed in forma pauperis (Doc. 1) is
GRANTED. Plaintiffs HIPAA claims are DISMISSED WITH
PREJUDICE, and all other claims are DISMISSED WITHOUT
PREJUDICE. Plaintiff shall file a proper Amended Complaint
within 30 days. If Plaintiff fails to properly amend his
Complaint within thirty days as directed by this Order, the
court may dismiss the case pursuant to 28 U.S.C. §
1915(e)(2)(B).
SO
ORDERED.
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Notes:
[1] To the extent Plaintiff is also
alleging that his attorney rendered ineffective assistance at
his parole revocation hearing, (Doc. 1-2 at 6), his Complaint
is devoid of any facts supporting this allegation. Moreover,
Plaintiff already alleged that he received ineffective
assistance of counsel at his parole hearings in another case
before this court, which was dismissed with prejudice. See
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